Time for a Child Welfare Approach to Cancellation of Removal

• Publication year: 2022

Time for a Child Welfare Approach to Cancellation of Removal

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Lory D. Rosenberg, Susan G. Roy, Paul Schmidt, and Rekha Sharma-Crawford ^*

Abstract: International law, criminal law, and even parts of immigration law recognizes that matters involving children cannot be treated in the same way as matters relating to adults. Still, more than a decade after the BIA issued its decisions in three key cancellation of removal cases, the idea that the "best interest of the child" standard should be encapsulated into the establishment of "exceptional and extremely unusual hardship" remains elusive. The best interest of the child is systematically ignored, as a rule, for kids affected by removal proceedings; even as it remains the gold standard in most other legal proceedings relating to children. With all that is now known about the trauma and damage done to children as the result of forced family separations, the BIA must reevaluate and reconsider draconian interpretations that do not align with modern society. It is time to bring cancellation of removal into the twenty-first century and make "best interest of the child" the key for establishing exceptional and extremely unusual hardship when the qualifying relative is a child.

Cancellation of removal was added to the Immigration and Nationality Act (INA) in 1996. For persons who are not lawful permanent residents, it allows those who have resided here continuously for at least 10 years before being placed in removal proceedings, who are of "good moral character," and who can establish that their removal would result in "exceptional and extremely unusual hardship" to their U.S. citizen or lawful permanent resident (LPR) spouse, parent, or child to receive a waiver of removability, resulting in a green card.

Over the past quarter century, the test for determining this degree of hardship has varied little as applied to the requisite "qualifying relatives"—even when they are children. While demonstrable physical or mental handicaps or debilitating illnesses are often key considerations, the immigration courts, unlike most U.S. courts, have not consistently and uniformly applied a "best interests of the child" test. Unfortunately, this has resulted in so-called healthy U.S. citizen children being either "de facto deported" to completely unsuitable conditions in a foreign country, or clearly traumatized by the forced absence of a supportive parent or parents. The number of children who have been affected, or will be affected, by this draconian standard is not small. As of 2018, 4.4 million minor, U.S. citizen children live with at least one undocumented parent. ¹ This outcome serves neither the child's nor society's "best interests."

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Given the sheer number of affected children, and the significant advancement over the past decades in our knowledge of the traumatic, lasting effects of forced family separation and uncertainty about the future on the health and welfare of children, their families, and our communities, it is past time to change how we evaluate the "exceptional and extremely unusual hardship" standard. We should recognize the "best interests of the child" as the keystone for the "exceptional and extremely unusual hardship" standard in cases where children are the requisite "qualifying relatives." And we must do it now!

Abner and His Sons ²

Abner, who is a native and citizen of Costa Rica, has lived in the United States for nearly three decades. He is a single father of two U.S. citizen children, Cal and Steven. When Cal and Steven were just babies, their mother abandoned them, choosing to return to Costa Rica. Steven has never spoken to his mother; Cal has only spoken to her on a couple of occasions over the past two decades. For these two brothers, Abner is both their father and their mother.

While the family is small, they have had to endure some very large challenges. To begin with, Abner identifies as a member of the LGBTQ community; this remains unknown to his children and his community. Choosing to remain closeted, Abner entered into a long-term relationship with the mother of the children. Still, that relationship was marred with abuse, which Abner endured silently.

Prioritizing his children's needs, Abner keeps his sexual orientation a secret because he is afraid to stack anything else onto his sons' frail psyches. Cal, his older son, has tried to commit suicide numerous times, and this struggle has been particularly daunting for the family. Cal has been hospitalized in a mental health facility, has spent years in an intensive out-patient treatment program, and still seeks therapy services when needed. He still displays symptoms consistent with separation anxiety disorder and major depressive disorder. Cal's brother, Steven, also has mental health problems and has been diagnosed with acute stress disorder. Abner has always been involved in his sons' lives; he attends every doctor appointment, visited his son every day while he was hospitalized, and has always provided them with emotional and financial support.

Abner was placed in removal proceedings in July 2016 after he was charged with child neglect in the fourth degree in violation of New Jersey law. While the offense sounds ugly, the facts were anything but. Abner had been volunteering the entire day at a church event when he, along with the other volunteers, wrapped up the evening with a couple of beers. Abner had not eaten enough and was tired enough that the beer left him intoxicated. Seeing that his father was in no condition to drive, Cal, who was 15 at the time, gave the keys to

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his uncle, who Cal thought was less inebriated. Unfortunately, that decision would prove to be a costly mistake. When police stopped the vehicle in which the entire family was traveling, they cited Abner with child neglect for allowing his children to travel in a vehicle being operated by an impaired driver.

Once in removal proceedings, Abner sought cancellation of removal for certain nonpermanent residents under INA § 240A(b)(1). The immigration judge denied relief, determining that the sons' mental health concerns and the numerous hardships they would face if Abner were removed were insufficient to establish the statutorily required level of hardship for cancellation of removal. The immigration judge made no mention of what was in the best interests of the children.

Development of the Current Exceptional and Extremely Unusual Hardship Standard

In 2001 and 2002, the Board of Immigration Appeals (BIA) issued three precedential "signposts" ostensibly intended to guide immigration judges and litigating parties through "typical examples" establishing the contours of "exceptional and extremely unusual hardship." Starting with Matter of Monreal, ³ the BIA, while finding that the statutory standard was not satisfied, observed that the qualifying hardship did not have to rise to a level that would be "unconscionable." ⁴ In Matter of Andazola, ⁵ the BIA reversed the immigration judge's grant of relief and denied cancellation to a single mother with a live-in partner (who also was the father of her two citizen children) despite the fact that the children admittedly would suffer educational and social dislocation if forced to accompany her to Mexico. By contrast, in Matter of Recinas, ⁶ another case involving a single mother from Mexico—who was divorced and solely responsible for the support of her six children (four being U.S. citizens and two Mexican nationals)—the BIA found that "exceptional and extremely unusual hardship" had been established.

Thereafter, the effort to provide practical, case-by-case guidance on the hardship standard came to a screeching halt. In 2003, despite a burgeoning workload, Attorney General John Ashcroft reduced the size of the BIA and "purged" judges appointed by his predecessor, Janet Reno, who were thought to be too "liberal"—that is, fair to respondents.

Having seen what happened to those who dared to buck the "party line," the "surviving" BIA judges abandoned the unofficial "cancellation guidance project." Indeed, the smaller BIA drastically reduced the number of precedent decisions that it issued, concentrating largely on what were deemed to be "uncontroversial issues"—those that were less likely to be career threatening.

Significantly, among those "banished" by Ashcroft were six of the eight dissenting BIA judges in Andazola, who would have found "exceptionally and extremely unusual hardship" to the U.S. citizen children. Also, importantly,

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two of those dissenters, Judge Cecelia M. Espenoza and Judge Lory D. Rosenberg, specifically concentrated on the issue of "child welfare" while blasting their colleagues in the majority for ignoring the important educational needs of the minor citizen children:

The decision to remove these citizen children will undoubtedly diminish their ability to be self-reliant and self-sufficient. Whatever the educational opportunity that might exist in Mexico, it will be substandard to that which would exist here. Indeed, "it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education." In short, the removal of the United States citizen children in this case is not merely a return to a country with a lower standard of living and a poor educational system. It is, in essence, a method of depriving the citizen children of the valued education that they currently enjoy in the United States. This, in turn, is likely to result in a lifetime hardship that deprives the children of an opportunity to obtain the skills necessary to meaningfully participate "effectively and intelligently in our open political system." ⁷

This invitation to adopt a more child-centered approach to "exceptional and extremely unusual hardship" has remained open for the past two decades, producing uncomfortably inconsistent results. Those immigration judges sympathetic to the best interests of...